Arlene Taylor

[2019] FWC 5585

[2019] FWC 5585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Arlene Taylor
(AB2019/2)

DEPUTY PRESIDENT KOVACIC CANBERRA, 13 AUGUST 2019

Application for an FWC order to stop bullying – request for recusal on the ground of apprehended bias – request refused.

[1] On 3 January 2019 Dr Arlene Taylor (the Applicant) filed an application under s.789FC of the Fair Work Act 2009 (the Act) seeking an order to stop bullying in accordance with Part 6-4B of the Act. In her application Dr Taylor alleged that she had been bullied by a number of staff of the federal Department of Health (the Department), including the First Assistant Secretary of the Department’s People, Communication and Parliamentary Division, her supervisor, past and present Directors of the Department’s Work, Health and Safety (WHS) Section and her WHS Case Manager.

[2] This decision deals with a request by Dr Taylor that I recuse myself from dealing with her bullying application. Dr Taylor’s request was made in an email sent to my chambers on 24 July 2019. The email included the following passage which sets out the basis on which the apprehended bias is said to arise:

“... I remain concerned that I felt pressured by you in the conference on 5 July to provide the ‘Dos and Don'ts’ document that I do not believe is appropriate for many reasons (as outlined to the Department). I do not believe I need to re-raise the reasons for the concern here, but I remain concerned that when I voiced that I didn't feel comfortable with it that I ended up with pressure from you and the Department. In light of this, I would like to request that you recuse yourself from this matter from this point forward, including the assessment of any submissions regarding the summons applications. In the event that there are any other matters brought before the FWC (between the Dept and myself) it would be appropriate for your involvement to be reviewed depending on the circumstances and nature of those matters.”

[3] Directions regarding the recusal request were issued on 25 July 2019 following a telephone mention and directions hearing earlier that day.

[4] For the reasons outlined below, Dr Taylor’s request that I recuse myself from dealing with her application for an order to stop bullying is refused.

Background

[5] Dr Taylor’s application for an order to stop bullying has been the subject of several conferences convened by the Fair Work Commission (the Commission) which have failed to resolve the matter. Dr Taylor’s application is listed for substantive hearing on 8-10 October 2019. In her application Dr Taylor describes the alleged bullying behaviour as including:

“Being pushed to disclose personal medical information to people I was not comfortable releasing that information to under duress (... the WHS team and emergency control team also pushed me to disclose and share information that I was not comfortable sharing).” 1

[6] By way of background, Dr Taylor has not been at work since 29 May 2018 but has been paid throughout the period. As a result, the conferences convened by the Commission to date have, among other things, sought to facilitate Dr Taylor’s return to work. A conference held on 6 May 2019 concluded on the basis that the matter would be relisted for a further conference to try and reach agreement on a return to work plan or, in the absence of agreement, to settle directions for the substantive hearing of Dr Taylor’s bullying application. In the absence of agreement on the return to work plan, the Commission issued Directions on 5 June 2019 regarding Dr Taylor’s bullying application.

[7] In subsequent developments, on 29 June 2019 Dr Taylor emailed the Commission in the following terms:

“Dear Deputy Commissioner (cc Respondent)

To provide some further information regarding the situation with the Department.

Having considered the legalities of the situation at hand, I returned to work on 28 June 2019. This was met with another highly inappropriate response from the Respondent in this matter (please see letter attached that has been sent to the Secretary of the Department).

The Department has received the JobAccess report, however, I note no actions to date to try and return me to the workplace. I politely suggest this is deliberate 'stalling' on the part of the Department who were in a position to have the bulk of the RTW plan drafted prior to receipt of the JobAccess report (which only provides limited information). I also note Ms James has publicly lied regarding whether or not I am medically cleared to return to work; no amount of advising Ms James to desist with her dishonest behaviour has worked and the Department has left her heavily involved in my return to work process.

The information attached is provided to keep you informed of the situation.

I request, if possible, a meeting, as soon as practical to address the return to work plan. I doubt the Respondent will act to produce one without prompting and 'pushing' from the FWC (if their behaviours to date are any indicator of their lack of genuine desire to achieve any return to work for me).

Of note, the continued exclusion from the workplace is causing observable damage to my job prospects: The first question at an interview I had on Friday morning was to explain my current job role and tasks; I was left in the position of having to explain the situation where my employer is forcibly and unreasonably excluding me from the workplace despite being medically cleared. I am certain I don't need to outline how prejudicial that would appear in an interview situation.

Please let me know if you are available to assist in the production of a RTW plan. I note that this document is not a legal requirement to return someone to the workplace and therefore it should not be used as an excuse for ongoing exclusion by the Department.”

[8] In the letter to the Secretary of the Department attached to the above email Dr Taylor stated inter alia that on 28 June 2019 she was directed to leave workplace, contending that this was on the basis that the Department claimed that she “had not provided the appropriate medical clearances to the Department”.

[9] Given Dr Taylor’s request for the Commission’s assistance in getting agreement on a return to work plan, her bullying application was listed for conference on 5 July 2019.

[10] On 3 July 2019 Dr Taylor forwarded a number of documents to the Commission and the Department. The documents included a return to work plan signed by her. The signed plan included the following under the heading “General Status of Workplace Adjustments”:

Issue/Support/Modification/Barrier:	Responsible Person(s):	Status:
Employer attitudes/approach to disability in the workplace (as part of a supportive working environment): - Agreement that Dr Taylor will have autonomy in managing her health conditions in the workplace unless she requests assistance or in an emergency; - Confidentiality regarding the use of, and sharing of information, about Dr Taylor’s health/workplace adjustments/workplace incidents will be in accordance with the Personal Information and Privacy Act; - Provision of workplace adjustments; - Clear direction to First Aid Officers, ECO and manager regarding appropriate level of enquiry and response to medical situations.	Department/Manager WHS Section Dr Taylor to provide education and boundary guidelines.	Part completed – Dr Taylor’s work area and managers are in agreement with Dr Taylor regarding the management. WHS Section have not formally agreed to this arrangement. Dr Taylor’s doctor has conveyed the importance to the WHS Section via Mr Carfi, the return to work provider.

[11] On 4 July 2019 Ms Kylie James, at that time Acting Assistant Secretary of the Department’s People Services Branch, emailed Dr Taylor setting out those aspects of the return to work plan which the Department considered required further discussion or amendment before the Department could agree to the plan. In respect of the issue of appropriate level of enquiry and response to medical situations Ms James’ email stated as follows:

“Appropriate level of enquiry and response to medical situations

The return to work plan highlights the need for First Aid Officers, the Emergency Control Organisation and your manager to be provided with clear direction regarding the appropriate level of enquiry and response to medical situations. Our understanding is this issue has been central to your concerns regarding the nature and levels of intervention in the past.

These matters were discussed between you, Dr Gooding and Mr Carfi based on your advice Dr Gooding was best placed to provide the Department with guidance. We have previously asked you to put in writing the approach you would like first responders to take. We request that you document your proposed approach and obtain Dr Gooding’s further advice on the documented approach to give us confidence we are meeting our obligations to you under the Work Health and Safety Act 2011. We will of course pay for the appointment and note the appointment that was scheduled for 25 July 2019 is still available. If you have an earlier appointment scheduled with Dr Gooding that would obviously expedite this.”

[12] At the conference on 5 July 2019 the parties worked through the various issues identified in Ms James’ abovementioned email of 4 July 2019. The conference concluded on the basis that Dr Taylor would inter alia provide a list of “Do’s and Don’ts” for first responders with either party was at liberty to seek the Commission’s assistance in resolving any issues which may arise in finalising the return to work plan. Indeed on 16 July 2019 the Department’s representative requested that the Commission convene a further conference “to resolve the final details of Dr Taylor’s return to work”, though shortly thereafter the representative advised that Dr Taylor had informed the Department that she did not consent to a further conference.

[13] On 21 July 2019 Dr Taylor sent the following email to my chambers:

“I am emailing to request your advice regarding how the current matter before the FWC proceeds. I have not copied in the Respondent to this email as I was unsure if that would be appropriate. If this is something they need to receive, I am happy to forward it on your advice.

Conflict of Interest

I have concerns that there may be a potential conflict of interest in this matter, and that it may be impacting on how the matter is being handled. It is my understanding that you have a prior association with Ms Kylie James (a named party in this matter). I raised this with you, in private, at the second FWC conference held; I note that you neither confirmed or denied a previous association with Ms James at that time. I have also highlighted this prior connection to Ms James and her response was not reassuring.

I would appreciate if you could please clearly outline your prior association and relationship with Ms James. Various parties have told me a number of things, however, I am mindful that information from third parties is not always accurate.

Impartiality

At the most recent FWC conference, on 5 July 2019, I was extremely concerned with how the "Emergency Management Plan" (referred to as the "Dos and Don'ts" document by Ms Balmanno) was handled. I felt that I expressed very clearly that I did not feel such a document was appropriate, or something my employer could legally ask for. I have subsequently reviewed the relevant laws, and it is not something that they can compel me to provide in these (or any other) circumstances. One of the bullying behaviours I feel the Department is repeatedly engaging in is where they seek to highlight me as 'different' or 'disabled' because they are aware of my various health conditions.

At the conference, I felt pressured to agree to provide the document, particularly when you made statements such as "I don't see what is so hard about producing the document." Producing it is not a difficult task. My objection is to being asked to provide it when I do not require anything special in an emergency situation. I felt the indication that I should comply with this request from the Department was not consistent with you being impartial in this matter. It was my feeling that in an attempt to ensure a return to work occurred (which I am very much still wanting) that you inadvertently encouraged some of the very behaviours from the Department that I hold serious concerns about. Furthermore, the fact that I agreed, under duress, at the conference to providing the document has added further challenges to the ongoing negotiations with my workplace around a successful return to work.

In light of the concerns raised above, I am unsure whether it is appropriate for you to continue to handle the current application for orders to stop bullying and associated matters such as the assessment/approval of summonses.

I would appreciate if you could please address these concerns before I provide any submissions regarding the requested summonses.” (Formatting as per original)

[14] On 24 July 2019 the following response was sent to Dr Taylor:

“I refer to your email of 21 July 2019 in which you raise issues about a possible conflict of interest and my impartiality.

Conflict of interest

You indicated in your email that you believe I may have a conflict of interest due to a “prior association” with Ms James. In my view there is no conflict of interest. While I know Ms Kylie as a result of having worked with her many years ago when she joined the Australian Public Service (APS), I have no ongoing association or interaction with Ms James other than in the context of proceedings related to your application. Further, since resigning from the APS in August 2013 to take up my appointment with the Fair Work Commission (the Commission) and outside the proceedings related to your application, I have met Ms James only once. That was in August 2015 at an unfair dismissal mock hearing conducted by the Commission. Other than that one brief meeting I have had no contact with Ms James prior to the initial conference regarding your application for an order to stop bullying. More broadly, I would highlight that, having worked in the APS for 35 years prior to being appointed to the Commission, it is inevitable that from time to time people I previously worked with and dealt with while working in the APS will appear before me. However, this of itself does not in my view give rise to a conflict of interest whenever that situation arises.

Impartiality

As to your concerns about my impartiality, I note your comments. However, you may wish to note that as required by s.634 of the Fair Work Act 2009 (Cth) before beginning to discharge my duties as a member of the Commission I took an Oath of Office in which I swore to among other things ‘faithfully and impartially perform the duties of the office’ of Deputy President of the Commission. As to the specific issue you refer to in your email, my recollection of the discussion at the most recent conference concerning your application was that an agreed ‘Do’s and Don’ts’ document was suggested in Ms James’ email of 4 July 2019 to assist ‘first responders’ as how to respond should you require assistance at work for whatever reason, e.g. a fall. I note that the content of any such document was a matter for the parties to agree on, with my notes indicating that you were to provide the first cut of such a document to the Department. I further note that I also highlighted at the most recent conference that it was open to either yourself or the Department to seek a relisting of your application in circumstances where agreement on the document and more importantly on a return to work plan could not be reached. Whether you agree to such a document is a matter for you. Subject to any submissions either you or the Department may wish to make, your decision as to whether you agree to such a document would not appear to be relevant to the determination of your application for an order to stop bullying. Finally, given your concerns, I would indicate that it is open to you, should you wish to do so, to make an application that I recuse myself from dealing with your application on the basis of apprehended bias.

I have copied the Respondent into this email.

I trust that the above information is of assistance.”

[15] As noted above, later that day Dr Taylor made her recusal request.

The Applicant’s recusal submissions

[16] Dr Taylor submitted among other things that:

•  I had a prior working relationship with Ms James, one of the persons against whom bullying is alleged in Dr Taylor’s bullying application;

•  neither I nor Ms James had disclosed that prior working relationship, with Dr Taylor contending that she raised the previous working relationship with me at the conference of 27 March 2019;

•  the Commission took no issue with Ms James failure to attend the conference of 5 July 2019;

•  at the conference of 5 July I “pressured” her into agreeing to something which the Department could not legally require of her; and

•  at the conclusion of that conference I apparently winked at her father, who had attended as Dr Taylor’s support person, in a way which she perceived as somewhat paternalistic.

[17] More particularly, Dr Taylor submitted that in the light of the lack of transparency regarding my prior association with Ms James and my apparent “siding” with the Department on matters of concern to her at the conference on 5 July 2019 that I should remove myself from further involvement in the matter.

The Department’s recusal submissions

[18] The Department did not support Dr Taylor’s recusal application. Specifically, the Department contended that Dr Taylor’s recusal application and submissions disclosed three matters which allegedly gave rise to an apprehension of bias:

1. my prior working relationship with Ms James;

2. my alleged non-disclosure of that prior working relationship; and

3. my prior involvement in this matter.

[1] Drawing on the decision in Ebner v Official Trustee in Bankruptcy 2 (Ebner) the Department submitted that apprehended bias involved circumstances which would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision-maker. The Department also noted the requirement imposed by s.640 of the Act for Commission members to disclose any potential conflicts of interest in a matter they are dealing with or will deal with.

[2] Key aspects of the Department’s submissions included that:

•  drawing on the Full Bench decision in Nystar Hobart Pty Ltd v Canaan 3 (Nystar), a Commission member’s prior association with a party in a matter before them cannot be sufficient by itself to disqualify a member in a particular case;

•  in circumstances where Dr Taylor had not challenged the description of the nature of my prior working relationship with Ms James as per my email of 24 July 2019 other than to suggest that inferences should be drawn from it not having been previously disclosed, my prior working relationship with Ms James was not sufficient for me to disqualify myself from this matter;

•  following the principles in Ebner, there was no serious possibility that required disclosure of my prior working relationship with Ms James in the interests of prudence or otherwise;

•  the bias rule prohibits prejudgement but not predispositions, referring to the Full Federal Court decision in ResMed Limited v AMWU 4;

it did not accept Dr Taylor’s unsworn assertions regarding her characterisation of the conference of 5 July 2019;

•  under s.592 of the Act a member of the Commission may mediate or make a recommendation or express an opinion; and

•  none of the conduct alleged by Dr Taylor and attributed to me regarding the conference of 5 July 2019 could realistically be other than actions taken in the course of me impartially discharging the power to mediate a matter by way of conciliation.

Consideration of the issues

[3] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were summarised by the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union 5 as follows:

“[12] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as relevant to the CFMMEU’s recusal application:

•  the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide; 

•  deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction;

•  the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits;

•  only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; and

•  it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary.” 6 (Endnotes not included)

[4] As noted above, Dr Taylor contends that she felt pressured by me in the conference on 5 July 2019 to provide a "Dos and Don'ts" document to the Department and that my comments at the conference regarding such a document indicated a lack of impartiality on my part. I do not deny encouraging Dr Taylor to consider agreeing to prepare such a document to provide clarity to first responders should Dr Taylor require assistance at work and in the context of seeking to facilitate Dr Taylor’s return to work. In doing so, however I was doing no more than expressing an opinion as per s.592 of the Act. More particularly, I do not consider that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of Dr Taylor’s bullying application in circumstances where:

•  the return to work plan signed by Dr Taylor and she provided to the Commission and the Department on 3 July 2019 in respect of the Issue/Support/Modification/Barrier “Clear direction to First Aid Officers, ECO and manager regarding appropriate level of enquiry and response to medical situations” required “Dr Taylor to provide education and boundary guidelines”; and

•  whether or not Dr Taylor agreed to the development of a “Do’s and Don’ts” document has absolutely no bearing on the determination of her bullying application.

[5] As to Dr Taylor’s submissions regarding my prior working relationship with Ms James, having regard to the nature of that relationship as set out in my email of 24 July 2019 I again do not consider that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of Dr Taylor’s bullying application simply because I happened to work with Ms James more than 10 years ago and in circumstances where I have no ongoing interaction with her. I also dispute Dr Taylor’s contention that she raised the previous working relationship with me at the conference of 27 March 2019. I have absolutely no recollection of her having done so and if she had done so I would have had no reason whatsoever to have been any less candid than I was in my email of 24 July 2019 regarding the issue. As I said in that email, “having worked in the APS for 35 years prior to being appointed to the Commission, it is inevitable that from time to time people I previously worked with and dealt with while working in the APS will appear before me.”

[6] As the Full Bench in Nystar stated:

“[39] A past association of a Member of the Commission with a party to a proceeding before them is insufficient, in itself, to have found a reasonable apprehension of bias. It would be necessary for something specific to arise from the past association relevant to the discharge of the statutory responsibilities of the Member in relation to the matter before them in order to cause a member of the public to entertain a reasonable apprehension of bias on the part of that Member arising out of the past association. The past association relied upon by the Appellant in the current matter was unspecific and devoid of any particularity. As the High Court found in Re Hoyts, it would be wrong to accede to a disqualification application on the basis of “non-specific and speculative grounds”, such as were advanced by the Appellant to Deputy President Wells.” 7 (Underlining added, endnotes not included)

[7] Consistent with the decision in Nystar, my past association with Ms James is insufficient to “found a reasonable apprehension of bias.”

[8] Beyond that, I do not consider that any of the other issues raised by Dr Taylor in her submissions, e.g. my acknowledgement of her father at the conclusion of the conference of 5 July 2019 and Ms James failure to attend that conference in circumstances where the relevant senior executive (i.e. Ms Rachel Balmanno, First Assistant Secretary) was in attendance, would see that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of her bullying application.

Conclusion

[9] For all the above reasons, I do not consider that the grounds relied upon by Dr Taylor, when considered either individually or collectively, have the result that a fair-minded lay observer might reasonably accept that I might not bring an impartial mind to the determination of Dr Taylor’s bullying application. Dr Taylor’s application that I recuse myself from dealing with her bullying application is therefore refused.

[10] As previously mentioned, Dr Taylor’s bullying application is listed for hearing on 8-10 October 2019. In circumstances where Dr Taylor’s recusal request is refused, I wish to highlight that those hearing dates and associated Directions remain in place.

Printed by authority of the Commonwealth Government Printer

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 1   Form F72 – Application for an order to stop bullying at Question 2.1

 2 (2000) 205 CLR 337

 3   [2015] FWCFB 888

 4 (2015) 232 FCR 152

 5   [2019] FWCFB 214

 6   Ibid at [12]

 7   [2015] FWCFB 888 at [39]